Defense grills former top judge in probation case

Wednesday

Jul 2, 2014 at 6:24 PMJul 2, 2014 at 6:28 PM

By Andy MetzgerState House News Service

BOSTON -- With the former chief of the trial court on the stand, the defense in the trial of three former probation department managers attempted Wednesday to show him acting in much the same way the defendants behaved, hiring a politically connect job-seeker with questionable qualifications and logrolling for his brother.

Robert Mulligan, who retired from the top court post about a year ago, acknowledged some mistakes he made in his years as a judge and administrator, misidentifying the appointing authority for court officers and writing a letter of thanks after an acquaintance of his brother was hired as an associate court officer.

“I was naive. I wrote this afterwards,” Mulligan said.

“You were naive? Is that what you just said?” asked defense attorney Stellio Sinnis.

Former Probation Commissioner John O’Brien and two of his former deputies, Elizabeth Tavares and William Burke III, are facing federal charges that they rigged hiring to ensure politically connected applicants received jobs.

For about one hour and 45 minutes Wednesday, Sinnis accused Mulligan of many of the same things federal prosecutors claim were part of the three defendants’ conspiracy within the probation department.

“In 2001 you put your thumb on the probation hiring scale as a favor to your brother, did you not?” Sinnis asked.

Mulligan denied that he pushed for the hiring of Maura Mitchelson, whom Sinnis said was the daughter of someone who sat on a banking board with Mulligan’s brother.

Mulligan, who was chief justice of administration and management from about 2003 to 2013 and said he hadn’t known Mitchelson at the time, acknowledged he wrote a letter after she was hired, in 2001, when he was a Superior Court judge sitting in Dedham. In a June 8, 2001 letter displayed in court, Mulligan wrote O’Brien, “My brother reports that she is ecstatic! Thank you very much for your consideration of Ms. Mitchelson among the thousands of applicants for positions.”

Mulligan’s claim that Mitchelson left probation because her association with him prevented O’Brien from advancing her up the ranks drew incredulous chuckles from some in the courtroom, eliciting sharp words from the judge.

“I will have absolute silence, and if I do not have it, I will clear the courtroom,” Judge William Young told the spectators, more numerous on Wednesday than any other day of the weeks-long trial.

Mulligan acknowledged under questioning from Sinnis that he knew Elizabeth Cerda was the wife of Peter Koutoujian, then a state representative and now a sheriff, when Mulligan hired her as his legislative liaison.

Cerda had two sons and was looking for more manageable hours than her law firm work, and approached Trial Court chief of staff Robert Pannetone about filling a new post managing intergovernmental affairs for the court.

Cerda applied April 17, 2007, and was hired to the position in an acting role that same day, documents showed.

“So she was pre-selected?” Sinnis asked.

Mulligan said, “I’m sure I sat down and talked to her before she was hired.” He also said Cerda “shouldn’t have” been appointed to an “acting” role for the new position.

About a month after the hire, the Legislature passed into law a mid-year spending bill, which Mulligan said gave the trial court $3.6 million that could have been used to hire court officers. The bill filed by the nascent Patrick administration also included millions for the Department of Correction, sheriffs, the state comptroller and other areas of government.

Prosecutors presented evidence that O’Brien and Mulligan clashed over a provision of the state budget that gave the chief justice the ability to transfer money into or out of probation department and other court departments.

“I want to know whether you have communicated a position on the matter of transferability to any legislator or legislative staff person,” Mulligan wrote O’Brien on April 7, 2005.

“I am unsettled by the tone of your most recent correspondence,” O’Brien replied the next day. He said he had “never taken an official position” on the issue but has “voiced” his “displeasure.”

The following week in 2005 House Ways and Means Chairman Robert DeLeo announced the release of the House budget. Mulligan said the House Ways and Means version removed the language giving him the ability to transfer funds to and from probation. Mulligan said the version that became law also was devoid of the transferability language, as were all the budgets to follow through fiscal year 2010.

With restrictions from the judge and questioning by prosecutor Fred Wyshak, Mulligan described a conversation he had in 2007 with Steven Panagiotakos, then the chairman of Senate Ways and Means, about the probation department’s hiring for the electronic monitoring program.

“He expressed to me that I had limited authority in my review of Commissioner O’Brien’s appointments, strongly expressed that,” said Mulligan, who said he met often with the Lowell Democrat about budget matters and “had a great respect” for him.

According to the prosecution, electronic monitoring jobs were doled out to legislators. Mulligan said, “I thought he had some kind of vetting process,” and said the electronic monitoring program is “important work,” that monitors sex offenders and child sex offenders, preventing them from going into restricted areas.

Defense attorneys are attempting to show that Mulligan was a mere rival of O’Brien, who made hiring decisions with the same considerations as the defendant. Prosecutors are trying to show that Mulligan was bulldozed and duped so that O’Brien could continue to prize political backing above all else in his personnel decisions.

Mulligan testified that he hired the father of a former top aide to Senate President Therese Murray as an associate court officer because he was the most qualified candidate despite his employment background as a short order cook, beverage manager and electrician’s helper.

Mulligan said he hired the 62-year-old father of former Murray chief of staff Rick Musiol in part because he had a “soft spot” for Vietnam War veterans. Mulligan himself served in Vietnam, and said a military background was beneficial for the security post.

Defense attorneys showed evidence in court of a note from a Murray aide suggesting the hiring of Musiol’s father was clear and that she had “received a call from Elizabeth” about it.

In a cross examination peppered with occasional expressions of sarcasm and incredulity, Sinnis also quizzed Mulligan about the level of scrutiny he gave to the hiring of Musiol and other court officers.

Mulligan said the question of how prospective hires would treat sick time was his primary concern, yet on one set of notes from a staffer about Musiol’s interview the answer to that question was left bank, and on another staffer’s notes from an interview with Musiol it said simply, “only when sick.”

Sinnis asked if he applied the same scrutiny to probation officers and court officer hires, “Or do you have a lesser degree of scrutiny for court officers because they’re your people?”

Another applicant, Marc Chiarenza, had his application faxed from former Senate President Robert Travaglini’s office, according to a header. Chiarenza, a 1999 graduate of Matignon High School and avowed hockey fan who wrote that he worked for American Airlines, was hired as an associate court officer in 2004 and promoted to a temporary court officer in 2007.

Although Mulligan was the appointing authority for court officers, the hiring documents show the former chief justice approving of appointments made by Tom Connolly, the acting director of security for the trial court.

“It’s an erroneous letter because I am the appointing authority,” said Mulligan, who said when he was filling out the hiring forms he “never envisioned” he would face this type of scrutiny.

Mulligan will be back on the stand Tuesday, with Sinnis continuing his cross-examination.

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